Disability Act 2005 – Assessment of Needs – Update

DISABILITY ACT 2005 – ASSESSMENTS OF NEED – UPDATE

In recent times the Disability Act 2005 and specifically the Assessment of Needs process (assessment of the health needs of a person with a disability), has been put in the spotlight in a growing number of cases brought by parents in the Circuit Court as well as the High Court. This is very likely to have a huge impact on resources, which in turn will have an adverse effect on the delivery of much needed services.

It is therefore of the utmost importance that Assessment Officers and Liaison Officers nationwide have an intricate knowledge of Part 2 of the Disability Act as well as the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007. Adhering to the timelines and review periods set out in the legislation and implementing strict controls is the only way to avoid costly legal proceedings.

The following is an examination of the relevant sections of the legislation and an important recent High Court Judgment by Ms. Justice Ni Raifeartaigh.

Disability Act 2005 and SI 263/2007 Regulations

Part 2 of the Disability Act 2005 introduced a system for the assessment of individual health service and education needs for persons with disabilities and in particular provides that on application, the HSE must carry out and provide an Assessment of Need and then issue a Service Statement setting out services it is proposed to provide.  Part 2 of the 2005 Act was commenced on 1st June 2007.

Initially it was envisaged that the provisions in Part 2 would only apply to persons under 5 years of age, however, a successful challenge to the legislation in the case of HSE v Dykes [2009], expanded the class of applicants to all children born after 1st June 2002.

Assessment of Need

In accordance with section 9(5) of the Disability Act 2005 and Regulation 10 of the Disability (Assessment of Need, Services Statements and Redress) regulations 2007, on receipt of an application, an Assessment of Need must have been commenced within three months and must be completed within a further three months.

The Assessment of Need must set out the following, without any reference to resources or practicability of providing services:

1. Whether the applicant has a disability
2. In cases where the applicant is determined to have a disability,

i A statement of the nature and extent of the disability.
ii. A statement of the health and education needs (if any) occasioned to the person by the disability.
iii. A statement of the services considered appropriate to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision.
iv. A statement of the period within which review of the assessment should be carried out – as per 2007 Regulations this review date must be no later than 12 months from the date of issuing the Assessment of Need report.

Once the Assessment Officer has completed the report, and it has been determined the applicant has a disability and the provision of health services are appropriate, the report is sent forward to a Liaison Officer who prepares a Services Statement. 

Service Statement

The Service Statement must be completed within one month of receipt of the Assessment of Need Report. Of note, the Liaison Officer, when drafting the Service Statement, must have regard to the practicability of providing the services identified in the assessment report and HSE expenditure and budgetary constraints.

Where the applicant is a child, pursuant to S. 11(6) of the 2005 Act, the Service Statement shall not contain any provisions relating to education services.

The Service Statement must contain:

• The health services which will be provided to the Applicant.
• The location(s) where the health service will be provided.
• The timeframe for the provision of the health services.
• The date from which the statement will take effect.
• The date for review of the provision of services specified in the service statement.
• Any other information the Liaison Officer deems appropriate.

In accordance with the 2007 Regulations, the Service Statement must be reviewed no later than 12 months after the statement was drawn up or no later than 12 months from when it was last reviewed or amended.

Statutory Complaints Mechanism

The Disability Act 2005 provides an elaborate and detailed statutory complaints mechanism for applicants but due to resource issues this mechanism suffered from long delays. Up until recently, it could not be successfully argued that the statutory complaints mechanism was appropriate or adequate. Much work has been done and we were pleased to learn that the backlog has been cleared and the average time for resolving a complaint now stands at 22 days.

Ideally, once a report issues from the Complaints Officer, the recommended actions within the timelines set out should be actioned.

In the event the recommendations are not carried out within three months of the date of the Complaints Officer report, the Applicant is free to apply to the Circuit Court for an enforcement order to compel compliance with the recommendations.

Litigation

For the most part the ligation brought by the Applicant’s parents are seeking commencement and completion of the assessment process.

Cases can be brought before the Circuit Court whereby the Court will order compliance with the recommendations of the Disability Complaints Officer within 6 weeks. Such applications are uncontroversial and can usually be dealt with on the first occasion in Court, thus keeping costs at a reasonably low level.

Cases are also brought in the High Court and those cases usually seek an Order of Mandamus, i.e. an order compelling the HSE to commence and complete the Assessment of Need, a declaration that the HSE have breached the Applicant rights and in many cases compensation for the delay. In most cases, the HSE is in breach of the time limits and the cases are compromised at an early stage with an agreement to complete the Assessment of Need within 6 weeks.

Two cases have come before the High Court for adjudication so far and in particular, judgment was handed down in the case of G v. HSE on 26th July 2019.

G v. HSE

This case centred around an application for assessment of need made by the Applicant’s father on the 8th October 2018. The child was not yet 4 years of age at the time of the application and there was a suspicion of autism. A letter of acknowledgement confirmed that pursuant to the Disability Act 2005, the Assessment of Need should be commenced on or before the 9th January 2019 and be completed on or before 9th April 2019.

On contacting the relevant Assessment Officer, the father was informed that there was a 14-16 month waiting list for assessment.

Judicial Review proceedings were issued in the High Court and it was agreed between the parties to proceed to hearing. In particular it was argued by the HSE that the Applicant’s complaint should have been submitted to the Disability Complaints Officer and thereafter to the Circuit Court if necessary. 

While the main issue i.e. commencement and completion of the Assessment of Need, became moot shortly before trial was due to begin as the Applicant was allocated an appointment for assessment, the issue of whether or not the Applicant was entitled to proceed in the High Court went to hearing.

Legal argument by both sides centred on the appropriateness of the internal complaints process and the Circuit Court procedure and legal costs.

Ultimately, while High Court costs were granted to the Applicant, Judge Ni Raifeartaigh examined the complaints process and made a number of comments in relation to same.

In particular, Judge Ní Raifeartaigh found:

“It seems to me that the root problem here is one of resources, and it may well be that because of those resource issues, widespread delays in commencing the assessments lead in turn to the complaints system – which may have been envisaged by the Act of 2005 to be used only occasionally – becoming swamped at a particular point in time…In that regard, the HSE’s decision to consent to the Circuit Court orders seems to be a pragmatic approach to a practical problem caused by resource issues rather than a cynical disregard of the Act of 2005.

I am not satisfied on the evidence before me that there is a systematic and deliberate ignoring of the time limits for reasons unconnected with resources. All of this seems to me to come down to resources and it would seem better for those resources to be put into the hiring of experts who would conduct assessments rather than diverting them to pay High Court legal fees.”

Judge Ni Raifeartaigh concluded by stating:

“…it seems to me that in the general course of events, the normal procedure for an applicant would be to use the statutory procedure, provided it is working within reasonable timeframes, rather than proceeding by way of judicial review in the High Court.”

Conclusion

This case potentially is of great importance for the HSE as it provides a legal precedent that endorses the statutory complaints procedure as long as it operates within reasonable timeframes. It should at least encourage applicants to follow the statutory complaints procedure in the event that they do not receive their Assessments within the statutory time periods. This in turn should stem the flow of Judicial Review applications.

If you require any clarification or advice on the Assessment of Need process, please contact any of the team at Comyn Kelleher Tobin.